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Thursday, May 15, 2014

K (Children): The privilege against self incrimination

The case K (Children) [2013] EWCA Civ 1776 has just popped up on Bailii, although it was decided last October. For the most part it is a fairly standard long-running private law children dispute, albeit with some rather nasty facts. This particular judgment, the latest in an apparently long line, concerned the father's appeal against an order by Judge Bellamy reducing his supervised contact with the children to two occasions a year and imposing a section 91(14) order for a period of ten years.

There were various things going on in the appeal, but I just want to concentrate on the key issue, which relates to self incrimination. The issue had its roots in the sad history of the case:

"Very sadly, the litigation history of this case is extensive. Black J, as she then was, held a fact finding hearing in relation to serious allegations and made findings of fact in September 2007. In 2008, she had to undertake a second fact finding hearing, which led to the reversal of some of these original findings in a judgment delivered on 13 August 2009. In particular, a wound the father sustained in May 2007 was found to be self inflicted, and a fire which occurred in the father's house in September 2009 was found to be the responsibility of the father himself."

As a result, Black J granted a residence order to the mother, supervised contact every month to the father and made a section 91(14) order for a period of two years.

The matter returned to the court and on the 22nd of February 2013 Judge Bellamy made his order. The father obtained permission to appeal:

"The key issue upon which the unconditional permission which was granted was based was whether Judge Bellamy had failed to take into account what was referred to by father's counsel as his privilege against self incrimination; that is, the privilege that can be found in section 14 of the Civil Evidence Act 1968. The single judge was taken to the transcript of the cross-examination of father in the court below, and he had demonstrated to him the importance that Judge Bellamy had placed upon the father's response to the findings of Black J. To put the matter simply, father had not accepted the truth of the most serious of the findings made by Black J, including the issues of self inflicted stabbing and fire raising in his discussions with the forensic psychiatrist instructed in the proceedings, nor in the cross-examination, which included examination by the judge himself."

Thus:

"As a consequence, as can be ascertained from the judgment, Judge Bellamy concluded that father remained very dangerous and that the risk of the abuse of the mother and the risk of abduction of the children remained high or very high. The import of the appeal was to demonstrate that father told the judge that he could not or would not answer questions about those findings because he relied upon what he described as his privilege against self incrimination and hence the negative inferences drawn against him should not have been so."

The leading judgment in the Court of Appeal was given by Lord Justice Ryder. He did not accept that once the adverse findings had been made by Black J, the section 14 self incrimination privilege arose:

"The submission was that the judge should have taken into account the father's refusal to answer questions, no doubt on advice, and not made adverse findings against him."

However, the Court of Appeal did not have to decide the matter as, on the day prior to the hearing, the father had instructed his lawyers that in fact he did not accept the findings made by Black J. Accordingly:

"That has the consequence that the primary ground of this appeal falls away. It can no longer be asserted that Judge Bellamy made an error in his evaluation of father's evidence with the inevitable consequence that the index of dangerousness and the nature and extent of the risk of harm remain in place."

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